Privacy and Civil Liberties Oversight Board report on mass surveillance

Last updated

The Privacy and Civil Liberties Oversight Board report on mass surveillance was issued in January 2014 in light of the global surveillance disclosures of 2013, recommending the US end bulk data collection. [1] [2]

Contents

Background

The Privacy and Civil Liberties Oversight Board was first chartered under the Intelligence Reform and Terrorism Prevention Act of 2004. [3]

The role of the board is to provide advice and review of whether adequate supervision, guidelines, and oversight exist and to "continually review" regulations, policies, procedures, and information sharing practices to ensure privacy and civil liberties considerations are protected. [4] [5] To carry out these roles, the board does not have subpoena power, but is able to request subpoenas subject to the U.S. Attorney General's discretion "to protect sensitive law enforcement or counterterrorism information or ongoing operations." The U.S. Director of National Intelligence also has the power to override requests "to protect the national security interests of the United States" [4]

A report by former members of the 9/11 Commission in December 2005 noted there was "little urgency" in creation of the board, whose first meeting was in 2006. [4] It was initially composed of a chair, vice chair, and three other members. As these members served at the pleasure of the President, "Critics ... maintained that the board appeared to be a presidential appendage, devoid of the capability to exercise independent judgment and assessment or to provide impartial findings and recommendations", according to the Congressional Research Service. [4]

Subsequently, member Lanny Davis resigned in protest over the board's lack of independence, citing "extensive redlining by Administration officials of the board's first report to Congress" that was accepted by the other members. [4] The board was then reconstituted under the Implementing Recommendations of the 9/11 Commission Act of 2007 (H.R. 1), beginning in January 2008, as an independent agency with appointments subject to Senate confirmation. Four members of the board were nominated by President Barack Obama in 2011, and confirmed by the Senate in August 2012. [4] Board chairman David Medine was finally confirmed in May 2013 in the wake of the Snowden disclosures in a party-line vote with 53 Democrats supporting and 45 Republicans opposing. [6]

Global surveillance disclosures

The Board's report follows a series of highly publicized leaks about the operations of the global surveillance program conducted by the National Security Agency in the United States working with a number of other countries (see Five Eyes). While the program's nominal focus was on foreign nationals, the disclosures also revealed the large-scale surveillance of communications by United States citizens. [7] These leaks were largely the work of Edward Snowden, a Booz Allen Hamilton employee with access to a wide range of top secret documents. Publications of the documents by The Washington Post and The Guardian began in June 2013. [8]

Report

External videos
Nuvola apps kaboodle.svg David Medine, chair of PCLOB, on surveillance program
January 29, 2014

On January 23, 2014, the board released its report, [2] recommending the US end bulk data collection. [1] [9] Instead federal agencies would be able to obtain phone and other records under court orders in cases containing an individualized suspicion of wrongdoing. But there would be no storehouse, private or public, of telephone data beyond what the phone companies keep in the course of their normal business activities. [10]

The report concluded that the program "lacks a viable legal foundation". [1] [11] It concluded "we see little evidence that the unique capabilities provided by the NSA's bulk collection of telephone records actually have yielded material counterterrorism results that could not have been achieved without the NSA's Section 215 program." [12]

The report concluded: "Cessation of the program would eliminate the privacy and civil liberties concerns associated with bulk collection without unduly hampering the government's efforts, while ensuring that any governmental requests for telephone calling records are tailored to the needs of specific investigations." [13]

The report called for a "Special Advocate" to be involved in some cases before the FISA court judge. [1] The Board also contained the recommendation to release future and past FISC decisions "that involve novel interpretations of FISA or other significant questions of law, technology or compliance." [1]

The report also recommended against an alternate proposal, which President Barack Obama had ordered Attorney General Eric Holder to formulate within 60 days, which would force third parties including telephone companies to conduct data retention. The panel's majority spokesman said this was due to cost and legal exposure for the companies involved, and that it was not an "easy out". [14] [2]

Reactions

Sen. Ron Wyden, a senior member of the intelligence committee and long-time critic of the programs, released a statement in reaction to the report. Said Wyden:

"The privacy board's findings closely mirror many of the criticisms made by surveillance reform advocates. The bulk collection program was built on a murky legal foundation that raises many constitutional questions and has been proven to be an ineffective tool for collecting unique intelligence information. As the board wrote in its report, a program where the government collects the telephone records of millions of law-abiding Americans 'fundamentally shifts the balance of power between the state and its citizens.' The board goes on to say that with the government's 'powers of compulsion and criminal prosecution,' collection of data on its own citizens 'poses unique threats to privacy,' and is expected to have a 'chilling effect on the free exercise of speech and association.'" [15]

Asked by Pat Mächler to what extent the report will have an impact, Edward Snowden stated:

I don't see how Congress could ignore it, as it makes it clear there is no reason at all to maintain the 215 program. Let me quote from the official report: "Cessation of the program would eliminate the privacy and civil liberties concerns associated with bulk collection without unduly hampering the government's efforts, while ensuring that any governmental requests for telephone calling records are tailored to the needs of specific investigations." [16]

See also

Related Research Articles

<span class="mw-page-title-main">United States Foreign Intelligence Surveillance Court</span> U.S. federal court

The United States Foreign Intelligence Surveillance Court (FISC), also called the FISA Court, is a U.S. federal court established under the Foreign Intelligence Surveillance Act of 1978 (FISA) to oversee requests for surveillance warrants against foreign spies inside the United States by federal law enforcement and intelligence agencies.

The Privacy and Civil Liberties Oversight Board (PCLOB) is an independent agency within the executive branch of the United States government, established by Congress in 2004 to advise the President and other senior executive branch officials to ensure that concerns with respect to privacy and civil liberties in the United States are appropriately considered in the development and implementation of all laws, regulations, and executive branch policies related to terrorism.

<span class="mw-page-title-main">MAINWAY</span> NSA database of US telephone calls

MAINWAY is a database maintained by the United States' National Security Agency (NSA) containing metadata for hundreds of billions of telephone calls made through the largest telephone carriers in the United States, including AT&T, Verizon, and T-Mobile.

<span class="mw-page-title-main">PRISM</span> Mass surveillance program run by the NSA

PRISM is a code name for a program under which the United States National Security Agency (NSA) collects internet communications from various U.S. internet companies. The program is also known by the SIGAD US-984XN. PRISM collects stored internet communications based on demands made to internet companies such as Google LLC and Apple under Section 702 of the FISA Amendments Act of 2008 to turn over any data that match court-approved search terms. Among other things, the NSA can use these PRISM requests to target communications that were encrypted when they traveled across the internet backbone, to focus on stored data that telecommunication filtering systems discarded earlier, and to get data that is easier to handle.

<span class="mw-page-title-main">Mass surveillance in the United States</span>

The practice of mass surveillance in the United States dates back to wartime monitoring and censorship of international communications from, to, or which passed through the United States. After the First and Second World Wars, mass surveillance continued throughout the Cold War period, via programs such as the Black Chamber and Project SHAMROCK. The formation and growth of federal law-enforcement and intelligence agencies such as the FBI, CIA, and NSA institutionalized surveillance used to also silence political dissent, as evidenced by COINTELPRO projects which targeted various organizations and individuals. During the Civil Rights Movement era, many individuals put under surveillance orders were first labelled as integrationists, then deemed subversive, and sometimes suspected to be supportive of the communist model of the United States' rival at the time, the Soviet Union. Other targeted individuals and groups included Native American activists, African American and Chicano liberation movement activists, and anti-war protesters.

<span class="mw-page-title-main">2010s global surveillance disclosures</span> Disclosures of NSA and related global espionage

During the 2010s, international media reports revealed new operational details about the Anglophone cryptographic agencies' global surveillance of both foreign and domestic nationals. The reports mostly relate to top secret documents leaked by ex-NSA contractor Edward Snowden. The documents consist of intelligence files relating to the U.S. and other Five Eyes countries. In June 2013, the first of Snowden's documents were published, with further selected documents released to various news outlets through the year.

<span class="mw-page-title-main">Reactions to global surveillance disclosures</span>

The global surveillance disclosure released to media by Edward Snowden has caused tension in the bilateral relations of the United States with several of its allies and economic partners as well as in its relationship with the European Union. In August 2013, U.S. President Barack Obama announced the creation of "a review group on intelligence and communications technologies" that would brief and later report to him. In December, the task force issued 46 recommendations that, if adopted, would subject the National Security Agency (NSA) to additional scrutiny by the courts, Congress, and the president, and would strip the NSA of the authority to infiltrate American computer systems using "backdoors" in hardware or software. Geoffrey R. Stone, a White House panel member, said there was no evidence that the bulk collection of phone data had stopped any terror attacks.

This is a category of disclosures related to global surveillance.

<span class="mw-page-title-main">USA Freedom Act</span> 2015 U.S. surveillance law

The USA Freedom Act is a U.S. law enacted on June 2, 2015, that restored and modified several provisions of the Patriot Act, which had expired the day before. The act imposes some new limits on the bulk collection of telecommunication metadata on U.S. citizens by American intelligence agencies, including the National Security Agency. It also restores authorization for roving wiretaps and tracking lone wolf terrorists. The title of the act is a ten-letter backronym that stands for Uniting and Strengthening America by Fulfilling Rights and Ensuring Effective Discipline Over Monitoring Act of 2015.

<span class="mw-page-title-main">FISA Improvements Act</span>

The FISA Improvements Act is a proposed act by Senator Dianne Feinstein, Chair of the Senate Intelligence Committee. Prompted by the disclosure of NSA surveillance by Edward Snowden, it would establish the surveillance program as legal, but impose some limitations on availability of the data. Opponents say the bill would codify warrantless access to many communications of American citizens for use by domestic law enforcement.

<span class="mw-page-title-main">Proposed reforms of mass surveillance by the United States</span>

Proposed reforms of mass surveillance by the United States are a collection of diverse proposals offered in response to the Global surveillance disclosures of 2013.

<i>Klayman v. Obama</i> American federal court case

Klayman v. Obama, 957 F.Supp.2d 1, was a decision by the United States District Court for District of Columbia finding that the National Security Agency's (NSA) bulk phone metadata collection program was unconstitutional under the Fourth Amendment. The ruling was later overturned on jurisdictional grounds, leaving the constitutional implications of NSA surveillance unaddressed.

<span class="mw-page-title-main">Barack Obama on mass surveillance</span> Overview of the statements of former U.S. president Barack Obama on mass surveillance

Former U.S. President Barack Obama favored some levels of mass surveillance. He has received some widespread criticism from detractors as a result. Due to his support of certain government surveillance, some critics have said his support violated acceptable privacy rights, while others dispute or attempt to provide justification for the expansion of surveillance initiatives under his administration.

<i>American Civil Liberties Union v. Clapper</i> American federal court case

American Civil Liberties Union v. Clapper, 785 F.3d 787, was a lawsuit by the American Civil Liberties Union (ACLU) and its affiliate, the New York Civil Liberties Union, against the United States federal government as represented by then-Director of National Intelligence James Clapper. The ACLU challenged the legality and constitutionality of the National Security Agency's (NSA) bulk phone metadata collection program.

<span class="mw-page-title-main">Litigation over global surveillance</span>

Litigation over global surveillance has occurred in multiple jurisdictions since the global surveillance disclosures of 2013.

In Re Electronic Privacy Information Center, 134 S.Ct. 638 (2013), was a direct petition to the Supreme Court of the United States regarding the National Security Agency's (NSA) telephony metadata collection program. On July 8, 2013, the Electronic Privacy Information Center (EPIC) filed a petition for a writ of mandamus and prohibition, or a writ of certiorari, to vacate an order of the Foreign Intelligence Surveillance Court (FISC) in which the court compelled Verizon to produce telephony metadata records from all of its subscribers' calls and deliver those records to the NSA. On November 18, 2013, the Supreme Court denied EPIC's petition.

<span class="mw-page-title-main">Timeline of global surveillance disclosures (2013–present)</span>

This timeline of global surveillance disclosures from 2013 to the present day is a chronological list of the global surveillance disclosures that began in 2013. The disclosures have been largely instigated by revelations from the former American National Security Agency contractor Edward Snowden.

<span class="mw-page-title-main">John Tye (whistleblower)</span> American lawyer and whistleblower

John Napier Tye is a former official of the U.S. State Department who came forward in 2014 as a whistleblower seeking to publicize certain electronic surveillance practices of the U.S. government under Executive Order 12333. He later co-founded a legal organization, Whistleblower Aid, intended to help whistleblowers in multiple sectors forward their concerns without incurring legal liability.

Targeted surveillance is a form of surveillance, such as wiretapping, that is directed towards specific persons of interest, and is distinguishable from mass surveillance. Both untargeted and targeted surveillance is routinely accused of treating innocent people as suspects in ways that are unfair, of violating human rights, international treaties and conventions as well as national laws, and of failing to pursue security effectively.

<span class="mw-page-title-main">Rachel Brand</span> American attorney (born 1973)

Rachel Lee Brand is an American lawyer, academic, and former government official. She served as the United States Associate Attorney General from May 22, 2017, until February 20, 2018, when she resigned to take a job as head of global corporate governance at Walmart. Brand was the first woman to serve as Associate Attorney General. She also served as Assistant Attorney General for the Office of Legal Policy in the George W. Bush administration and was appointed by President Barack Obama to serve on the Privacy and Civil Liberties Oversight Board. Prior to becoming Associate Attorney General, Brand was an associate professor at Antonin Scalia Law School.

References

  1. 1 2 3 4 5 Micek, Peter; Ben-Avie, Jochai; Fox, Jon (January 23, 2014). "US privacy oversight board slams legality & usefulness bulk data collection". Accessnow.org. Retrieved February 1, 2014.
  2. 1 2 3 "Report on the Telephone Records Program Conducted under Section 215 of the USA PATRIOT Act and on the Operations of the Foreign Intelligence Surveillance Court" (PDF). Privacy and Civil Liberties Oversight Board. January 23, 2014.
  3. ↑ "Title I - Reform of the Intelligence Community" (PDF). United States Government Printing Office. December 7, 2004. Archived from the original (PDF) on February 5, 2012. Retrieved December 5, 2012.
  4. 1 2 3 4 5 6 Garrett Hatch (November 14, 2011), Privacy and Civil Liberties Oversight Board: New Independent Agency Status (PDF), Congressional Research Service
  5. ↑ George, Roger Z.; Robert D. Kline (2005). Intelligence and the National Security Strategist. Rowman & Littlefield. p. 572. ISBN   978-0-7425-4039-2.
  6. ↑ "On the nomination of David Medine as chairman of the federal Privacy and Civil Liberties Oversight Board: Senate Roll Call 114". ProgressivePunch. May 7, 2013.
  7. ↑ Barton Gellman (December 24, 2013). "Edward Snowden, after months of NSA revelations, says his mission's accomplished". The Washington Post . Retrieved December 25, 2013.
  8. ↑ Greenwald, Glenn. "NSA collecting phone records of millions of Verizon customers daily". The Guardian. Retrieved August 16, 2013.
  9. ↑ Savage, Charlie (January 23, 2014). "Watchdog Report Says N.S.A. Program Is Illegal and Should End". The New York Times. Retrieved March 3, 2014.
  10. ↑ Spencer Ackerman and Dan Roberts (January 23, 2014). "US government privacy board says NSA bulk collection of phone data is illegal". The Guardian. Retrieved March 3, 2014.
  11. ↑ Spencer Ackerman in Washington (January 23, 2014). "US privacy board dissenters defend balancing act of NSA surveillance | World news". theguardian.com. Retrieved February 1, 2014.
  12. ↑ Abdo, Alex (January 24, 2014). "PCLOB NSA surveillance report: Three things you need to know". Slate.com. Retrieved February 1, 2014.
  13. ↑ Nakashima, Ellen (January 23, 2014). "Independent review board says NSA phone data program is illegal and should end". The Washington Post. Retrieved March 3, 2014.
  14. ↑ Margaret Talev and Chris Strohm (January 23, 2014). "NSA's Spying on Phone Calls Illegal: U.S. Privacy Board". Bloomsburg News. Archived from the original on January 25, 2014.
  15. ↑ Albany Tribune (January 23, 2014). "Wyden Statement On PCLOB Report On Bulk Collection Of Phone Records". Albanytribune.com. Archived from the original on January 25, 2014. Retrieved February 1, 2014.
  16. ↑ Snowden, Edward (January 23, 2014). "Live Q&A with Edward Snowden". Courage Foundation. Archived from the original on January 24, 2014. Retrieved January 24, 2014.
This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.